DELTA STEWARDSHIP COUNCIL: Delta Watermaster Update: Litigation in the Delta, Term 91, SB-88 implementation, and more …

At the June meeting of the Delta Stewardship Council, Delta Watermaster Michael George gave his quarterly update where he discussed the pandemic response, ongoing litigation in the Delta, the work being done to implement SB-88, and other issues.

Pandemic response

Despite the pandemic, the State Water Board has been able to generally maintain essential functions through teleworking and other technologies and they continue to coordinate with other entities and agencies on tasks.

One of those tasks is the annual water use reports.  Annual water use reports are due on April 1st for those with licenses; on July 1st, the supplemental statements of water diversion and use are due for those with riparian rights and pre-1914 rights.  He noted that even with the pandemic, all but about four reports from licensees are outstanding, and there are specific reasons for those.

I would contrast that to statewide,” said Mr. George.  “The Delta’s a record of performance in terms of getting these reports in on time is actually higher than in the rest of the state.”

He noted that due to the pandemic, they did have to suspend physical inspections.  However, they have been able to maintain momentum in most of their efforts.


Mr. George congratulated the Council on the Third District Court of Appeals’ decision that essentially vindicated the enforceable framework for coordinating government action through the Delta Plan. “While I know that there is a pending petition for review, the Third District decision was really quite remarkable and a valuable vindication of the Delta plan.  It certainly underscored to the State Board and to other participating agencies that the Delta plan is the room where it happens.  So I think that’s a good thing in terms of focusing the attention of the various state and cooperating federal agencies.”

One of the biggest issues for the State Water Board is the large number of now consolidated cases challenging the first phase of the Bay-Delta Water Quality Control Plan which pertains to the San Joaquin River tributaries and the Southern Delta water quality objectives.  Board staff is now in the early stages of finalizing the record that will go up to the court for review.  Mr. George noted that the record is extensive – just the index is 900 pages.  The record includes many items that have been developed over a long period of time.

The challenges to the federal biological opinions have been consolidated in the Eastern District Court in Fresno.  The federal judge did grant a preliminary injunction basically deferring the impact of some of the differences in the new biological opinions as compared to the old ones.

The most important aspect of that is the federal judge’s indication that it was likely that the primary challenges to the federal biops were, in his view, based on the pleadings likely to ultimately be vindicated,” said Mr. George.  “That’s an important waypoint in the road.”

He also noted that the Incidental Take Permit for the State Water Project which was promulgated by the Department of Fish and Wildlife at the end of March has drawn some challenges; it is at an earlier stage of litigation.

The litigation has sucked a lot of the air out of the room, but not all of it,” he said.  “However, while the Titans exchange thunderbolts above our head, we are trying to proceed with work beneath the litigation level.”

Work on the draft resilience portfolio, published in early February, is moving forward toward a final version.  There hasn’t been really any negotiations on the voluntary agreement framework because of the ongoing litigation, but Mr. George did acknowledge a lot of good work has been done in terms of model development and analysis of various proposals.  There are a lot of things going on with respect to advancing Delta science, such as the upcoming data science symposium.  There are also some multi-benefit projects emerging in the Delta, which are having the opportunity to develop and get some sponsorship and local support.  The State Board is continuing to develop a water quality control plan for the Sacramento River and the Delta itself.  With the implementation of the Sustainable Groundwater Management Act, there’s pressure on the Delta as a source of surface water to make up for the surface water reductions, particularly in the San Joaquin watershed.  And budget uncertainty overhangs everything.

Update on 2020 Work Plan progress

Preparing for the next drought

The slide shows the drought monitor that was released on June 11.  Precipitation was above average in Southern California, and while there isn’t the storage capacity in Southern California to capture all of it, it did reduce demand on the Delta, said Mr. George.  For Northern California where the main watersheds and storage facilities are located, it’s been a dry year.  So this could be the first year of a multi-year drought.

One of the things the State Water Board is working on is improving data reporting and management.  At the upcoming data science symposium, they will be discussing what’s going on with data management and improving the data by cross-referencing it.  They are also working at streamlining the regulatory process to make it more responsive to water managers and so they can better coordinate among Delta water users.

Holland Tract Pilot Project

At the December Council meeting, Mr. George reported on a new initiative which is an investigation of water rights on Holland Tract. Holland Tract was chosen as a pilot project because it’s relatively simple; there are only 15 senior water rights claims on Holland Tract and the Reclamation District 2025 is cooperative and well managed, he said.

We think that this is an area where it will give us examples of a lot of the problems, confusion, and inconsistencies we see in water management and reporting,” Mr. George said at the December Council meeting. “We’re working with the locals there to sort this out, but we’re approaching it to develop it as a protocol template to work through these issues so that we can develop a template for action that we can take to other islands, particularly islands that are in unified management and control.”

Work is continuing on the project, as much as is possible during the pandemic.   The tract is well studied, being one of the four islands purchased by the Metropolitan Water District from an independent agency back in 2016.  Metropolitan is a good partner, sharing information and actively participating in the pilot project, he said.  About a quarter of the island is in private ownership, independent of Metropolitan’s holding.

Supporting diverters through outreach and education

They have been working with and listening to water users in the Delta that provide information to them on a regular basis, and as a result, they have upgraded the report management system to be more intuitive to use.  And in doing so, they have improved the ability to cross-reference the new information that is gathered from these reports with other available data sets.

They have also been working to solve one of the continuing problems which is duplicate reporting. This can occur because permits and licenses are statutorily required to report their water use on April 1st while holders of riparian or pre-1914 claims are statutorily required to report on July 1st.  They are looking to propose legislation to move all of the reporting to a single date, but that’s not possible with the legislature’s shortened year due to the pandemic, but they plan to do it in the next legislative cycle.

By having those reporting dates at different times, we found that we get this duplicate reporting where the same molecules of water diverted often through the same point of diversion and used for the same purpose on the same place of use is reported twice,” said Mr. George.  “So when we aggregate the data, we actually do two things. We overestimate the amount of water that’s actually used in the Delta. And number two, we mask the portion of that water use, which is at the most senior level in our priority system.  We’re rolling out and applying more broadly the principles that we enunciated and published in 2017 in our overlap memo, so that we’re trying to help users reduce the errors in their reports and reduce the inaccuracies so that we can rely more heavily or more confidently on the reports that we get.”

Implementing SB-88 Diversion Measurement Regulation

The Office of the Watermaster continues to work on ongoing project implementation of the water diversion measurement regulations adopted by the Board in 2016 to implement SB-88, a trailer bill in 2015 that required every diversion in the Delta to be measured on the overall theory that you can’t manage what you don’t measure.

Through a now four-year process with the Delta measurement experimentation consortium, we finally recognized and acknowledged that there are certain challenges to measure every diversion and that we simply don’t have the technology or the capability in the Delta where we can overcome those challenges,” said Mr. George.

There is a provision in the regulations that allows for an alternative compliance plan where strict compliance with putting a diversion measurement device on every diversion is just impossible.  So the consortium has been focusing on Open ET technology which relies on satellite data to provide high-quality consistent data on a timely basis the evapotranspiration of crops in the Delta. They are working to develop an alternative plan of compliance that will utilize this emerging Open ET technology and they have been beta testing a version in the Delta.  At the next meeting scheduled for mid-July, the consortium will be moving to adopt and implement a work plan for development of the alternative plan for compliance which they anticipate will be available for use in 2022.

The Tanaka case

The Third District Court of Appeals has issued a ruling in the Tanaka case, reversing the Superior Court decision.  The circumstances of this case it that a subdivision took place in the Delta which removed a certain parcel from its contiguity with a watercourse which generally under common law would destroy the riparian right for that property.

The court said, you have to look to the intent of the parties at the time that subdivision occurred,” said Mr. George. “You have to see if in the four corners of their documents if they clearly indicated an intent to retain the riparian parcel; then that riparian right to the interior parcel carries on, but where those documents are not clear, the court gave us guidance on how they should look. Therefore we should look at extrinsic evidence to establish the intent of the parties at the time. The implication here is that there is no bright line rule. These inquiries are fact-specific, but overall, the likelihood in my view as Delta Watermaster is that there will be additional riparian claims in the Delta, which are able to take the facts of this specific inquiry, apply it to their circumstances, and very likely give a higher level of validity and operability to riparian rights within the Delta.”

He acknowledged there has been a petition for review to the Supreme Court filed which is still outstanding. “Nonetheless, we are moving with the changed law of the case as this was a reversal of the court decision of a couple of years ago. So we’re now applying the law, the case, recognizing that there could be further appeals.”

Term 91

They have been working to improve the administration of Term 91, which is a term in the licenses granted since the mid-1960s that says then certain conditions are in place, those with Term 91 in their license must curtail diversions under that license.  This year, Term 91 conditions were triggered on June 5th.

The State Board has developed a chart that is updated every Friday that is based on the latest hydrological and operation information.

You can see there that the two conditions: the Delta must be in balance and the state and federal projects are releasing previously stored water in order to maintain water quality in the Delta,” said Mr. George.  “When those two things come together, Term 91 is triggered, which is shown by the red line.  On June 5th, those two conditions came into effect and Term 91 is now in effect.  We developed that graphic to inform people on a week by week basis how conditions are developing and when Term 91 might be enacted.”

He acknowledged it won’t have a lot of impact on the Delta primarily because the licenses with Term 91 are relatively junior licenses from the 1960s, and most of the Delta has senior water rights with a very high priority on the system.

By going through this Term 91 administration has given us the opportunity to improve coordination among regulators and operators. So the Office of the Delta Watermaster, the Division of Water Rights, and the project operators can use this as a way to improve our information sharing. So, for instance, we don’t have to make telephone calls to ask if the Delta is in balance, or what releases of stored water are.  All that information has now been made generally available.

Coordinating with others

In terms of coordination with others, they are working on improving coordination with CSAMP, the IEP, the Delta Science Plan, but also where the court has indicated there is overlapping jurisdiction between the State Water Board and the Delta Stewardship Council, one of those being the climate change vulnerability assessment.

Within our office and within the Bay-Delta unit of the Division of Water Rights and with our Office of Information Management and Analysis, we’re all in on that, unified with the science program. We’re continuing to work with the CVP and the SWP on implementation of one of the aspects of the water quality control plan, which is the development of a comprehensive operations plan for the projects, working with other users and diverters in the Delta on Southern Delta water quality.  Finally, there is the Fremont Weir Big Notch project, which is actually physically outside the Delta but has enormous impacts on the Delta. So, we’re working on all of those things.”


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